DePaul Journal of Art, Technology & Intellectual Property Law Volume 17 Issue 1 Fall 2006 Article 6 Whose Tube? A Contributory Copyright Infringement Analysis of the Pending Lawsuit, Robert Tur v. Youtube Inc. Philip Kunz Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Philip Kunz, Whose Tube? A Contributory Copyright Infringement Analysis of the Pending Lawsuit, Robert Tur v. Youtube Inc., 17 DePaul J. Art, Tech. & Intell. Prop. L. 167 (2006) Available at: https://via.library.depaul.edu/jatip/vol17/iss1/6 This Case Notes and Comments is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. Kunz: Whose Tube? A Contributory Copyright Infringement Analysis of th WHOSE TUBE? - A CONTRIBUTORY COPYRIGHT INFRINGEMENT ANALYSIS OF THE PENDING LAWSUIT, ROBERT TUR V. YOUTUBE INC. I. INTRODUCTION In February of 2005, Steve Chen, an engineer in California, hosted a dinner party during which he and gathered friends took many digital pictures and video clips.' Upon uploading all of their pictures to the Web with ease, Chen and two other friends found it quite difficult to share large video files quite as easily.2 By May of that year, these three computer engineers had come up with a solution to the problem of online video sharing and launched a website that would allow computer users to view videos from their Web browsers without needing special software.' They called their website youtube.com. Between word-of-mouth publicity and venture capital funding, the website grew in one year to be among the top-ten most popular sites on the Internet, with content ranging from five-second home video clips to ten-minute segments of popular television shows.' However, due to the increasing popularity of the site, and YouTube users' propensity to upload copyrighted material without the consent of the owner, YouTube has become the target of a contributory copyright infringement lawsuit.' This note examines the issues involved in the currently pending lawsuit filed on July 14, 2006 by copyright owner Robert Tur 1. David Greising, YouTube Founder Rides Video Clips to Dot-corn Riches, CHI. TRIB., Oct. 15, 2006, at C 1. 2. Id. 3. Id. 4. Id. 5. Compl. at 10, Tur v. YouTube, Inc., No. 06-cv-00436 (C.D. Cal. July 14, 2006). Published by Via Sapientiae, 2016 1 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 17, Iss. 1 [2016], Art. 6 DEPAULJ.ART &ENT.LAW [Vol.XVII:167 against the web-company YouTube. Particularly, this note will predict whether or not YouTube will be held liable for contributory copyright infringement for hosting Tur's copyrighted content on its site without Tur's permission. Section II of this article details the background of two main areas of relevance: (1) the case history of Tur v. YouTube, including a background of plaintiff Robert Tur, defendant YouTube, Inc., and YouTube's anti-piracy techniques; and (2) the relevant controlling copyright law to this case, namely the law of contributory copyright infringement, the Digital Millennium Copyright Act (hereinafter DMCA), and applicable copyright case precedent. Section III first discusses whether YouTube will enjoy the safe harbors provided by the DMCA. Specifically, this part analyzes the requisite qualifications necessary for safe harbor under the DMCA and whether or not YouTube will likely prevail on the subject in the current litigation. The second subject analyzed is whether or not YouTube will be found liable for infringement in light of the case precedent, taking into consideration the common law of contributory copyright infringement. This analysis will specifically investigate what can be learned from each of the three major precedential cases on point and how such case law can predict the likely outcome of Tur v. YouTube. Section IV examines the impact that a liability judgment would have on YouTube and similarly situated companies upon the consideration of a first amendment freedom of expression policy. Additionally, this section analyzes other possible remedial measures for copyright holders besides bringing potentially crushing lawsuits on YouTube. Ultimately, section V predicts that YouTube will not be found liable for contributory copyright infringement in the current suit due to (1) its protection from the DMCA as an Internet Service Provider, (2) the relevant facts of this case compared to keystone cases and the common law of contributory copyright infringement, and (3) the significant negative policy ramifications that a liability judgment would have on free expression. https://via.library.depaul.edu/jatip/vol17/iss1/6 2 Kunz: Whose Tube? A Contributory Copyright Infringement Analysis of th 2006] WHOSE TUBE? II. BACKGROUND A. The Case History of Tur v. YouTube, Inc. On July 14, 2006, Rober Tur filed a contributory copyright infringement suit in the Central District Court of California against YouTube Inc., the owner and operator of a popular video sharing website.6 Tur alleged that video footage he shot in the early 1990's was downloaded over 5,500 times on youtube.com without his permission, and he claims as a result, YouTube is profiting from his work while hurting his chance to license the video.7 Tur is asking for injunctive relief in the form of a removal and ban of all of his videos from youtube.com, as well as $150,000 in statutory damages for each violation of his rights.8 Tur is focusing on the recent decision from the United States Supreme Court Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, LTD. 9 Grokster held that one who distributes a device with the object of promoting its use to infringe copyright is liable for the resulting acts of infringement by third parties.' ° In the answer to Tur's complaint, filed on October 10, 2006, YouTube claimed as its main defense that it is protected by the DMCA of 1998." Specifically, the DMCA provides safe harbor for internet service providers whose users upload infringing content. 2 6. Id. at 10. 7. Id at 4. 8. Id. at 10. 9. Id. at 4. 10. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, LTD., 545 U.S. 913, 940 (2005). 11. Answer at 7, Tur v. Youtube, Inc., 06-cv-04436 (C.D. Cal. Oct. 11, 2006). YouTube also raises seven additional defenses: (1) failure to give notice and comply with the requirements of the DMCA 17 U.S.C. § 512(c); (2) Plaintiffs claims are barred by the fair use doctrine; (3) Plaintiffs claims are barred by the doctrine of laches; (4) Plaintiffs state law claim is barred b y the doctrine of preemption; (5) Plaintiff has failed to mitigate damages, if any; (6) Plaintiff's prayer for damages may be limited by his failure to timely register his copyright; and (7) Plaintiff's prayer for statutory damages is limited on the ground that Plaintiff failed to allege facts sufficient to show alleged infringement by YouTube was willful. Id. at 8. 12. 17 U.S.C. § 512(c) (2006). Published by Via Sapientiae, 2016 3 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 17, Iss. 1 [2016], Art. 6 170 DEPAULJ.ART. & ENT. LAW [Vol. XVII:167 1. Rober Tur Background Robert Tur is a helicopter pilot and reporter who founded the Los Angeles News Service (hereinafter LANS), a duly accredited news gathering and reporting organization.13 Tur is credited with being the first reporter to televise a police chase live in 1992."4 Notably, LANS was the first to catch up with Al Cowlings and OJ Simpson during the famous slow-speed chase of 1994."5 According to Nielsen Ratings, Tur's coverage of the chase attracted over 95 million viewers, and was the highest rated television event of the year for basic cable. 6 Another famous event that Tur covered from the air was the attack of Reginald Denny during the 1992 Los Angeles Riots. 7 After watching the beating live on television, four residents rescued Denny, and he survived as a result. 8 All of the content shot by Tur is protected by copyright owned by LANS. 9 In the past, when major media networks televised any copyrighted clips owned by LANS, they routinely did so under proper license and with consent of Robert Tur2 13. Compl., supra note 5, at 2. 14. Id. at 3. 15. Id. 16. 95 Million Watched The Chase, N.Y. TIMES, June 22, 1994, at A12, available at http://query.nytimes.com/gst/fullpage.html?res=9AO7EEDD 103DF931A15755COA962958260. The ratings are calculated based on a cross section of about 10,000 homes across the United States who have agreed to be "Nielsen Families." http://www.nielsenmedia.com/ (follow "FAQs" hyperlink; then follow "Our Research" hyperlink) (last visited Sept. 10, 2007). In order to track the actual viewing habits of the family, a "People Meter" is installed on their television to record the demographic of the viewer and what programming they watch. Id. The People Meter, which is a small electronic device that attaches to the back of a television, supplements the more traditional method of recording ratings, the paper diary. The paper diary relies on the viewer to fill out a seven-day log of what they watched on television. Id. 17. Compl., supra note 5, at 4. 18. Tunku Varadarajan, Flying in the Face of Taste, LONDON TIMES, May 8, 1998, available at http://www.sree.net/stories/LTchopper.html (last visited Sept. 10, 2007). 19. Compl., supra note 5, at 3. 20. Id. at 2. https://via.library.depaul.edu/jatip/vol17/iss1/6 4 Kunz: Whose Tube? A Contributory Copyright Infringement Analysis of th 20061 WHOSE TUBE? 2.